Justice delayed is justice denied

Twenty-five years ago today, freedom and equality took a giant step forward in Canada with the signing of the Charter of Rights and Freedoms. On that rainy April day in Ottawa, citizens finally had their rights entrenched in the Constitution so that, in theory, according to section 15 of the Charter, "every individual is equal before and under the law."

Twenty-five years ago today, freedom and equality took a giant step forward in Canada with the signing of the Charter of Rights and Freedoms. On that rainy April day in Ottawa, citizens finally had their rights entrenched in the Constitution so that, in theory, according to section 15 of the Charter, "every individual is equal before and under the law."

But it is one thing to proclaim a goal and another to achieve it. While we celebrate the Charter, we must also acknowledge that as currently implemented, Canada's system of judicial administration is denying justice to thousands of citizens on a daily basis, leaving bitterness and despair in its wake.

Our system of justice is a mammoth undertaking: In 2003-04, criminal courts dealt with 450,000 cases stemming from more than 1 million charges.

It is also an expensive undertaking: The cost of a three-day civil trial is estimated to be more than $60,000 and many trials go on for five days, or even eight. It is also a very slow undertaking: Cases that were once heard in seven days now take seven months.

In 2003-04, the mean time from first to last appearance was seven months, according to data from the Canadian Centre for Judicial Statistics, up 14 per cent from the previous year.

Large, slow, and expensive are adjectives usually employed to describe our system of health care. But they apply equally well to our system of justice.

The implications of this unacceptable state of affairs were well outlined recently in a powerful speech by Supreme Court Chief Justice Beverley McLachlin.

She told a Toronto audience that "access to justice is quite simply critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system." With our court system clogged, she continued, "as the delay increases, swift, predictable justice, which is the most powerful deterrent of crime, diminishes. The personal and social costs are incalculable."

Behind every statistic measuring the increasing delays and court overloads, is a human being in pain and conflict. One case, for example, involving a friend of mine, demonstrates McLachlin's point about incalculable costs.

A man given to violent rages, which had already dissolved his first marriage in Europe, remarried in Canada. The pattern of verbal and physical abuse, however, re-emerged, and after choking incidents, trips to the hospital, and interventions by family and friends, the police finally filed charges. But delay after delay followed.

Inevitably, problems with evidence, like hospital records, ensued. Finally, the charges were stayed by the presiding justice for an unreasonable delay on the part of the Crown in bringing the matter to trial. The victim is in shock, the accused abuser, walking free.

McLachlin is surely correct when she generalizes about such cases that, "when delay becomes too great, the courts may no longer be an option. Many people look for other alternatives or they simply give up on justice."

Besides the chief justice, others are seized by the enormity of the problem. Michael Bryant, the Attorney General of Ontario, for example, has appointed Coulter Osborne, an associate chief justice of Ontario, to prepare options to make the civil justice system more accessible and affordable.

But other governments have taken a pass. Despite the guarantees of equal justice contained in the Charter, the federal government does not assist the provinces with legal aid in civil justice matters.

Canada's current system of legal aid, therefore, is a patchwork, with plans and eligibility criteria differing among the provinces.

In criminal legal aid assistance, the Canada Assistance Act used to provide joint funding. But when the federal government reduced directed funding in favour of general transfers to the provinces, spending on legal aid in provinces like British Columbia plummeted.

The Canadian Bar Association, frustrated by years of inaction by the provincial and federal governments on adequate funding, has even taken the major step of launching a test case on the constitutionality of civil legal aid in Canada.

On health care, Canadians insist on access and reduced waiting times. Should we demand any less from our system of justice?

The Canada Health Act enshrined the principles of medicare: We need a Canada Justice Act to address the massive implementation gaps in our system of justice, including guaranteed federal funding for criminal and civil justice legal aid. Justice delayed is justice denied.

As we laud the ideals of the Charter, we must realize that rights are only formalities if they cannot be exercised.

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